Fifth Circuit Kills Immigration Reform

HOUSTON (CN) – President Obama cannot offer temporary relief to millions of immigrants, a Fifth Circuit panel ruled Monday night, upholding the injunction against his signature immigration policy reform by a 2-1 vote. The order is bad news for the estimated 4.3 million qualifying immigrants, parents of U.S. citizens, who have been waiting for the Fifth Circuit’s decision since it heard oral arguments in July in New Orleans. For these families, the ruling means more of the same: Uncertainty and fear as they wait for the next step in the case, a likely appeal to the U.S. Supreme Court. The ruling makes it more likely that Obama will leave office without seeing the program begin, after he announced it in November 2014 as a workaround to Congress’ refusal or inability to pass immigration reform. The Obama administration says the goal of Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, is to keep law-abiding families together and prioritize deportation of serious criminals and new illegal arrivals, in the face of limited federal resources, a process known as prosecutorial discretion. Those who qualify under DAPA would be granted 3-year “lawful presence” and could apply for driver’s licenses and federal work permits. The program was slated to take effect in May, but U.S. District Judge Andrew Hanen in Brownsville enjoined it in February, siding with a Texas-led coalition of 26 Republican-controlled states that sued the federal government in December 2014. The Fifth Circuit on Monday ruled that the suing states have standing because they will bear the cost of issuing driver’s licenses to qualifying immigrants. “At least one state – Texas – has satisfied the first standing requirement by demonstrating that it would incur significant costs in issuing driver’s licenses to DAPA beneficiaries,” Judge Jerry E. Smith wrote for the majority. Because Texas subsidizes its driver’s licenses – it does not make applicants pay processing fees – it would pay $130.89 for each license issued to a DAPA beneficiary, Smith wrote, which could add up to millions, since an estimated 500,000 people would qualify in Texas. The government argued that the costs of the driver’s license would be offset by the immigrants’ vehicle registration fees, and the work permits would increase tax revenue and decrease strain on social services. But Smith said the government was comparing apples and oranges. “Even if the government is correct, that does not negate Texas’s injury, because we consider only those offsetting benefits that are of the same type and arise from the same transaction as the costs,” the 70-page majority opinion states. Texas also claimed the Obama administration violated the Administrative Procedure Act, which requires that substantive rule changes be published in the Federal Registrar to let citizens comment on them before they take effect. The government said that DAPA is exempt from notice and comment since it is a policy statement, not a substantive rule. To qualify as a policy statement, Smith wrote, DAPA must give employees of the Department of Homeland Security, the agency charged with immigration enforcement, the right to exercise discretion on whether to accept applications. Smith agreed with Hanen’s finding that although DAPA requires federal employees to review applications on a case-by-case basis, in practice, nearly all applicants would likely be approved. Hanen cited DAPA’s sister program, Deferred Action for Childhood Arrivals, or DACA. Introduced in a memo from then-DHS Secretary Janet Napolitano in 2012, it granted two-year lawful presence to some immigrants who came to the United States illegally as children. Obama expanded the eligibility for DACA and increased the protection it confers from two to three years in November 2014 at the same time he unveiled DAPA. “Like the DAPA Memo, the DACA Memo instructed agencies to review applications on a case-by-case basis and exercise discretion, but the district court found that those statements were ‘merely pretext’ because only about 5 percent of the 723,000 applications accepted for evaluation had been denied,” Smith wrote, According to the majority, DAPA makes it too easy for parents of U.S. citizens to be granted lawful presence, contrary to the rigorous path set out by the Immigration and Nationality Act. Under that law, a parent must have a U.S. citizen child who is 21 years old, must leave the United States, wait 10 years, and then apply for a visa. Judge Smith was appointed to the Fifth Circuit by President Ronald. George W. Bush-nominee Jennifer Walker Elrod joined Smith in the majority.

The Dissent In a 55-page dissent, Judge Carolyn King said DAPA is a legal use of prosecutorial discretion. King said it’s a matter of resources: “Although there are approximately 11.3 million removable aliens in this country today, for the last several years Congress has provided the Department of Homeland Security with only enough resources to remove approximately 400,000 of those aliens per year.” King backed her colleague Stephen Higginson, who wrote the sole dissenting opinion in a Fifth Circuit ruling in May that denied the administration’s emergency motion to lift the injunction. Smith also wrote the majority opinion for that ruling, and Walker Elrod joined him. Higginson said he believed a federal court should not be able to weigh in on DAPA because it is “non-justiciable.” King agreed on Monday, writing: “Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable.” She took issue with Hanen’s agreement with Texas that DAPA grants qualifying immigrants the new benefit of being able to get federal work permits. “The ability to apply for work authorization, the benefit on which the district court most heavily relied, has been tied to deferred action by a federal regulation since the early 1980s,” King wrote. She was appointed by President Jimmy Carter. The meticulously researched opinions make one thing clear: U.S. immigration law is convoluted and contradictory, and no amount of court battles will change that. Many experts agree that it will take an act of Congress to straighten this out, and perhaps give the millions of undocumented immigrants living here a way to obtain “lawful presence” outside of the courts. Texas Attorney General Ken Paxton gave the ruling a thumbs-up in a statement: “The Fifth Circuit asserted that the separation of powers remains the law of the land, and the president must follow the rule of law, just like everybody else.” The nonprofit American Immigration Council called the ruling “disappointing but unsurprising,” and urged the Justice Department to appeal to the Supreme Court.